In this post, I want to demonstrate a possible mistaken assumption many of us have been making as we try to read through the redactions, which is that the only source of potential irregularity in the document at the heart of Latif’s habeas case may have arisen out of translation problems.

Denbeaux describes what he believes the circumstances of the report at the heart of the Latif case to be.

To illuminate how the presumption works, the majority utilizes a hypothetical that does not properly apply to Latif’s case. The hypothetical depicts a government intelligence officer taking the statement of a third party informant. The majority would have us presume that the officer accurately wrote down what the third party informant said, though not presuming the informant’s statement was itself true. This seems to make sense until you apply it to the facts of Latif. A fair and thorough reading of the opinion suggests that the document and information being redacted is a report from an interrogation of Latif that contains opponent-party admissions. The interrogation likely involved an interrogator, a translator, and Latif. Thus, the third party informant in the majority’s hypothetical is Latif himself.

But that’s not exactly what Janice Rogers Brown wrote in the majority opinion in this case. In addition to requiring us to presume that the officer accurately wrote down what the third party informant said, she also wants us to presume that the government officer accurately identified the source.

The confusion stems from the fact that intelligence reports involve two distinct actors-the non-government source and the government official who summarizes ( or transcribes) the source’s statement. The presumption of regularity pertains only to the second: it presumes the government official accurately identified the source and accurately summarized his statement, but it implies nothing about the truth of the underlying non-government source’s statement. [my emphasis]

That’s an important distinction because there are hints that misattribution might be a significant issue in this case as well.

First, the government reply to the Circuit Court tries to refute just that possibility along with mistranslation. “Those similarities – which square with the external evidence about [redacted] make it highly unlikely the report resulted from a mistranslation or misattribution” (PDF 8)

Then, even going back to Latif’s CSRT in 2004–at which the allegations he fought at Kabul, the same allegations at issue here, were presented–he insisted he was not the person referred to in the unclassified summary of charges against him.

I told you I wasn’t the person they were referring to. I never went to the places that you said I did. I am not the person this case is based on.

Also remember that the government is not relying on a discrete, self-contained report on Latif alone. Rather, it has presented just fragments of a larger report, as David Tatel noted in his dissent.

The Report’s heavy redactions–portions of only [redacted] out of [redacted] pages are unredacted–make evaluating its reliability more difficult. The unredacted portions nowhere reveal whether the same person [one and a half lines redacted] or whether someone else performed each of these tasks. And because all the other [redacted] in the Report are redacted, the district court was unable to evaluate the accuracy of [redacted] by inquiring into the accuracy of the Report’s [redacted].

That’s important because several of the intelligence reports reporting on detainees Pakistan turned over to the US in December 2001 are group reports (I’ve determined this by searching on the report name among Gitmo files). TD-314/00684-02, which I suspect is the report in question, includes reports from at least 9 detainees. TD-314/00685-02 (obviously, a closely related report) refers to at least 7 detainees. Another, TD-314/00845-02, catalogs the transfer of at least 8 detainees (a number of whom are also mentioned in TD-314/00684-02) from Pakistani to American custody. And IIR 7 739 3396 02 lists 84 detainees purportedly captured with Ibn Sheikh al-Libi. That is, even if I’m incorrect in my supposition that TD-314/00684-02 is the report in question, chances are quite good that the report deals with multiple detainees in the same report and the redactions Tatel describes serve to hide the other detainee stories told in the same report.

Furthermore, the internal distinctions between detainees in these reports do not appear to be clear cut. Often, references to these documents also include a paragraph letter (as in footnote 4 of Abdul Rahman Owaid Mohammad al Juaid‘s Gitmo file, referring to paragraph L of TD-314/00684-02 ). If it is so difficult to find information relating to a particular detainee in these reports, it increases the chances the reporting on them might get muddled in the process.

With that in mind, consider how Latif’s story compares with two of the other detainees included in TD-314/00684-02.

Judge Henry Kennedy’s opinion granting Latif’s habeas petition, for example, describes how the government pointed to Latif’s intake form describing that he went to Kabul “just to look around” as evidence of his changing story.

… they point to the intake form completed when Latif came into United States custody, which reports that Latif” went to [Pakistan] for treatment of an ear problem,” and that Latif “was in Kabul,” where he “claims he went just to look around about 4-5 months ago” and where he “stayed [for] 3-4 months.”

The reference is to the intake form (PDF 34). In a subsequent post, I’ll show that the government has not, itself, given this document the presumption of regularity, though that hasn’t stopped the government from pointing to the “just look around” explanation as proof that Latif’s story has been inconsistent. But I also find it striking that the story–placing a Yemeni detainee in Kabul “just to look around”–is similar to one attributed to another of the detainees whose Gitmo files depends on TD-314/00684-02, Sharaf Ahmad Muhammad Masud (though the timing is different). Masud’s story is attributed to TD-314/00684-02 and 3 subsequent reports (so Masud reportedly kept telling for some months after he arrived in Gitmo). Masud appears to have been caught by the Pakistanis in the same group as Latif was, and according to their two Gitmo files, he was formally turned over to US custody in the same place, Kohat, Pakistan, on the same day, on December 30, 2001, Latif was (though other documents say Latif was turned over on December 31).

Or consider the claims about Latif’s admission of ties to the Taliban. Significant parts of that material is redacted from the public filings in the case. But his Gitmo file claims that TD-314/00684-02 recorded him admitting that, after he traveled from Karachi to Quetta to Kandahar to Kabul,

Detainee admitted receiving weapons training from the Taliban and then fighting in support of the Taliban on the front lines.

[snip]

Detainee admitted after training he was sent to the front lines north of Kabul. Detainee remained there until the Taliban retreated and Kabul fell to the Northern Alliance.

That closely resembles the story attributed to al Juaid, who is alleged to have explained that,

From Karachi, detainee traveled to Quetta, PK and Kandahar, AF.6 Detainee then continued to Kabul. In approximately August 2001, detainee was assigned to the rear lines of the Northern front opposite the Northem Alliance (NA). Detainee remained in this position until the Taliban withdrew under heavy coalition bombardment on approximately 20 November 2001.

Now these stories–minimal training and a few months of fighting on the back lines in Kabul–are sourced exclusively to TD-314/00684-02 for both Latif and al Juaid. With no citation, both reports claim the man was part of Osama bin Laden’s 55th Arab Brigade; both reports assess (with no citation) the man fought briefly at Tora Bora, and traveled from there, with Ibn Sheikh al-Libi, to the Pakistani border. Both were rounded up, reported to be involved in the bus revolt, and turned over at Kohat. Al Juaid was turned over to the Americans in Kohat one day after Latif was, on December 31 (though other documents say Latif was turned over to the US on the same day–on December 31). The stories tying them to the Taliban are almost identical.

Significantly, al Juaid was transferred to Saudi custody in 2007, even though there is, if anything, more corroborating evidence (though not much) of ties to al Qaeda than there is with Latif. Al Juaid was held for six years based on almost exactly the story as Latif, like him, sourced almost exclusively to this one document, but the government was willing to transfer him into Saudi custody years ago.

Now I suspect the government would argue the similarities in the stories told–only in TD-314/00684-02, of course–prove that there was a pattern of behavior here. But the opposite is just as likely: that for Arabs detainees who had ever been in Kabul, the story reported in this one report with obvious flaws was assumed to have been the same, training (even if there was neither time nor evidence in the detainees’ known chronology for such training), fighting at the back lines, and then departure after the US started bombing Kabul. With a side trip to Tora Bora, regardless of the lack of any witnesses corroborating such a side trip, included for good measure.

In other words, it seems that the detainees whose purported confessions are reported in TD-314/00684-02 may have gotten muddled in the process.

The redactions in all the filings in the case are too extensive to be sure misattribution is one of the potential problems with this report. But it sure seems like American and Pakistani interrogators were having a tough time keeping their Arab captives straight. So I think it possible, at least, that part of the problem with the report used to hold Latif is that it told of jumble of poorly distinguished stories.

15 Responses to Latif and the Misattribution Problem: “All Arabs Look the Same”

The weeds are exceedingly deep here (having just read both Denbeaux’s piece and the US government’s reply brief), and I for one find it easy to get hopelessly lost.

So I hope EW will pardon the ignorance or confusion that comes out of my questions:

Denbeaux seems to argue that it is Latif’s own admissions that are at issue here as a result of one or more interrogations of Latif, translated by a translator, and then written up by some US government busybody (intelligence officer or perhaps some more junior-level clerical type).

But Denbeaux also makes use of the phrase “third party informant” providing verbal “evidence” against Latif which seems by itself to imply some other person than Latif himself.

Additionally, the US government’s brief also tries to make their case on the basis that Latif contradicts himself from the time of his apparent translated and transcribed admissions in the [redacted] intelligence report and his case before the court.

So which is it? Can you help me out here EW? Clarify things a bit?

Given the redacted nature of many of the pertinent documents, I realize that is a major task, but I’m missing just who’s translated and transcribed info is at issue here. Is it Latif’s or some third party? Or both?

@MadDog: So TD-314/00684-02 was a report on at least 9 of the detainees turned over as part of a much bigger (195) chunk of Arab detainees at the border of Pakistan in 2002. Many of these people were the Arabs turned over for bounty. They were also held in a remote Pakistani jail, and there had been a riot in the transfer of some of them (including some of the guys in this report). So it was very chaotic.

At its best, TD-314/00684-02 consisted of individual interviews between a DIA or CIA officer, a translator (remember we didn’t really have a cadre of translators at that point–ultimately we’d get a bunch of Detroit Arabs to translate, but they speak very different dialects than Yemenis and Saudis), and the detainee. In which case, Denbeaux’ description is right and Latif is the third party (I understand that to be–though I could be wrong–a formal description tied to hearsay rules).

But I think it likely (and the filing support) that there’s more going on here. Perhaps, for example, the Pakistanis taped their claims about who these people were–remember they made money for each “fighter”! Perhaps the Pakistanis did the interviews, then collated the information for the American, who wrote it up into a report.

You can see how the sheer numbers involved, plus the multiple languages (Arabic, English, Urdu, and probably some Pashto) would make any report like that a mess. But they do appear to be hiding the number of people involved in this report.

@emptywheel: Mucho thanks for helping me with that. I think your suggestion that the Pakistanis might have done the original interviews/interrogations a good possibility.

I still am fumbling with the inclusion of the word “informant”. That seems to imply that there really was a “third party”. But perhaps that is just my confusion with Denbeaux’s description of DC Circuit’s hypothetical where their construct uses a “third party informant”.

@MadDog: I should also add that given the timing of the capture and turnover in 2002 at the Pakistan border, it makes sense to me that the US would have had few of its own “interrogation” assets in place and would have likely depended on the Pakistanis for a great deal of the initial interrogations. Particularly for, as you point out, a large group of detainees.

The US ramp-up of its own “interrogation” assets would still be “behind the curve” for some time to come.

Apologies, I’ve only been surfing this story as you’ve been posting — but a question that occurs to me is, if John Walker Lindh was Detainee 001 and he was captured in late November or early December 2001 iirc, when did these detainee number IDs get assigned, and are all the nine in the batch report clarified at some point in the legal process by their detainee number? Does that help at all to sort this out?

But I think it likely (and the filing support) that there’s more going on here. Perhaps, for example, the Pakistanis taped their claims about who these people were–remember they made money for each “fighter”! Perhaps the Pakistanis did the interviews, then collated the information for the American, who wrote it up into a report.

The idea is that Janice Rogers Brown has ruled that courts must accept as true the government’s reports and that a detainee can’t challenge them? I’m thinking of this anecdote in a New Yorker story from last year:

The Double Game
The unintended consequences of American funding in Pakistan.
by Lawrence Wright

One day in March, 2004, when I was in Peshawar, in northern Pakistan, a firefight broke out in the tribal areas nearby. The newspapers said the Army was fighting Al Qaeda, and had surrounded Ayman al-Zawahiri, bin Laden’s deputy. Zawahiri escaped, but the troops captured a number of Al Qaeda fighters, including Zawahiri’s son Ahmed. The next day, a newspaper bore the headline “AHMED’S TALKING!” Yet Zawahiri doesn’t have a son named Ahmed. After that day, nothing more was said about Ahmed, but I kept puzzling over that tricked-up episode. I began to wonder, What would happen if the Pakistani military actually captured or killed Al Qaeda’s top leaders? The great flow of dollars would stop, just as it had in Afghanistan after the Soviets limped away. I realized that, despite all the suffering the war on terror had brought to Pakistan, the military was addicted to the money it generated. The Pakistani Army and the I.S.I. were in the looking-for-bin-Laden business, and if they found him they’d be out of business.

In addition to requiring us to presume that the officer accurately wrote down what the third party informant said, [Janice Rogers Brown] also wants us to presume that the government officer accurately identified the source.

What about the presumption that the government officer is accurately identified, or does the court care? Because I can’t forget the strange Gitmo story I read on Daily Kos a ways back, DoD impersonated FBI and State Dept officials during torture, and the followup, that it was approved by “Dep Sec Def.” I wonder what kind of interrogation record that leaves?

From: REDACTED
TO: REDACTED

DATE: 1/21/04 5:15PM
SUBJECT: FWD: RE: Impersonating FBI

When I was in the unit in December, I thought we agreed to take everything out of the EC that doesn’t specifically pertain to the “impersonation” issue. All of that information (including our suggestion that the detainee was threatened with —————is still in there, which I think is totally inappropriate.

Regarding the “impersonation”, I’m still not sure what our issue is here. It’s fairly clear to me that the “FBI Agent” wasn’t succesful in gaining the detainees cooperation. Thereafter, (months later) ———— carried the day with his ruse regarding ———- Once again, this technique, and all those used in these scenarios, was approved by the Dep Sec Def. Additionally, the techniques called into question in the EC were employed months after, and in a different environment from, the “FBI agent” ruse.

Plus I remember Jim White wrote a post at FDL about a Military Deception unit or program — they probably get ribbons and scout badges for it. Why should anyone believe them without question, much less a court of law?

Or consider the claims about Latif’s admission of ties to the Taliban. Significant parts of that material is redacted from the public filings in the case. But his Gitmo file claims that TD-314/00684-02 recorded him admitting that, after he traveled from Karachi to Quetta to Kandahar to Kabul,

Detainee admitted receiving weapons training from the Taliban and then fighting in support of the Taliban on the front lines.

[snip]

Detainee admitted after training he was sent to the front lines north of Kabul. Detainee remained there until the Taliban retreated and Kabul fell to the Northern Alliance.

That closely resembles the story attributed to al Juaid…

Again, apologies if I’m not following properly, but doesn’t that sound like John Walker Lindh’s story too? From an old comment of mine:

Lindh left his studies in Pakistan to go to Afghanistan to join the side the US was backing, the Taliban, in the civil war against the side the Russians and Iranians were backing, Northern Alliance warlords who were committing atrocities on the villagers Lindh went to help. Then 9/11 happens, America switches sides, the Northern Alliance takes him captive, and he is wounded and one of the less than 100 survivors out of 400 of terrible imprisonment (“Convoy of Death” film). Then he gets handed over to Americans, yay!, except not, because Donald Rumsfeld personally takes charge.

His wasn’t just the first trial in the ‘War on Terror.’ Lindh was the first victim whose torture could be shown to have been officially sanctioned.

Just wondering how Latif and Lindh may intersect. It seems to me that Lindh’s treatment set the rules from the start, but he’s been gagged away and the accountability trail going back to December 2001 decisions obscured.

Plus that thing about the Taliban — can Latif’s lawyers submit 2001 footage of Colin Powell announcing massive US grants to the Taliban? From Democracy Now’s interview of Lindh’s parents:

JUAN GONZALEZ: And at that time [early 2001], the new Bush administration was providing some degree of support for the Taliban, wasn’t it?

FRANK LINDH: Yeah, I think fair to say, Juan, more than “some degree.” We were the largest single donor of money to the Afghan government. In the first few months of the Bush administration in early 2001, we contributed hundreds of millions of dollars to the Taliban government. Our government did. And these were—this was all public. Secretary of State Colin Powell in April, around the same time John went [to Afghanistan], had a press conference and a public announcement about a grant of $46 million to the Taliban government. But that was just one of several grants that we made during that time.

I don’t know what Latif’s support for the Taliban was, but apparently ours was to the tune of hundreds of millions of dollars.

@emptywheel: Numbers at Gitmo were assigned based on what, the same reports in question now? Did Latif and the others he may now be confused with get numbers? Plus, did Lindh ever go to Guantanamo to get the first number? He went to US prison ships like the Bataan and/or Peleliu and then to jail in Virginia or something I thought. Checking link above:

FRANK LINDH: Well, the government never told him. They held him for fifty-four days incommunicado, until he was brought back to Washington, DC area, northern Virginia.

(On his capture Lindh’s parents had gotten a lawyer who asked Rumsfeld, Powell, Tenet and Ashcroft to see his client, and on the other end Lindh not knowing that asked to see a lawyer himself. Was not told, was not allowed. cf Jesselyn Radack. Mighty fine due process going on there for a court to accept as flawless evidence/witnesses.)

@emptywheel: What, no one else in the entire 55th Arab Brigade of Osama bin Laden trained with him? Abu Zubaydah never saw him, helped him, fingered him? Never a mention in Dick Cheney Sock Puppet Theater? This is not my beautiful Terror Theater… or is it?